360 F.2d 977 (8th Cir. 1966), 18054, American Infra-Red Radiant Co. v. Lambert Industries, Inc.

Docket Nº:18054, 18055.
Citation:360 F.2d 977, 149 U.S.P.Q. 722
Party Name:AMERICAN INFRA-RED RADIANT CO., Inc., a Delaware Corporation, and Hupp Corporation, a Virginia Corporation, Appellants, v. LAMBERT INDUSTRIES, INC., a Minnesota Corporation, Industrial Ceramics, Inc.,a Minnesota Corporation, and Agard L. Lambert, Appellees. LAMBERT INDUSTRIES, INC., a Minnesota Corporation, Industrial Ceramics, Inc., a Minnesota Co
Case Date:May 20, 1966
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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360 F.2d 977 (8th Cir. 1966)

149 U.S.P.Q. 722

AMERICAN INFRA-RED RADIANT CO., Inc., a Delaware Corporation, and Hupp Corporation, a Virginia Corporation, Appellants,

v.

LAMBERT INDUSTRIES, INC., a Minnesota Corporation, Industrial Ceramics, Inc.,a Minnesota Corporation, and Agard L. Lambert, Appellees.

LAMBERT INDUSTRIES, INC., a Minnesota Corporation, Industrial Ceramics, Inc., a Minnesota Corporation, and Agard L. Lambert, Appellants,

v.

AMERICAN INFRA-RED RADIANT CO., Inc., a Delaware Corporation, and Hupp Corporation, a Virginia Corporation, Appellees.

Nos. 18054, 18055.

United States Court of Appeals, Eighth Circuit.

May 20, 1966

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J. Matthews Neale, of Strauch, Nolan, Neale, Nies & Bronaugh, Washington, D.C., made argument for American Infra-Red Radiant Co., Inc., and others and filed briefs with William A. Strauch, Washington, D.C., and Herbert M. Burns, of Wheeler, Burns & Buchanan, Duluth, Minn.

John D. Gould, of Merchant, Merchant & Gould, Minneapolis, Minn., made argument for Lambert Industries, Inc., and others and filed brief with Robert T. Edell, Minneapolis, Minn.

Before VOGEL, Chief Judge, and BLACKMUN and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

This appeal and cross-appeal from the United States District Court, District of Minnesota, concerns a patent infringement case filed pursuant to Title 35, U.S.C., § 271 in which also is injected the issue of patent misuse and anti-trust. Jurisdiction is established by Title 28, U.S.C., § 1338. At issue is the validity of two patents, the alleged infringement thereof, the alleged patent misuse, and the alleged anti-trust violation.

The District Court 1 (the Honorable Dennis Donovan) held the patents valid but not infringed, and found no patent misuse or anti-trust violation.

The patents in question were issued to plaintiff American Infra-Red Radiant Co., Inc., as assignor of the inventor, Gunther Schwank, with plaintiff Hupp Corporation serving as a nonexclusive licensee of American Infra-Red, with right to sue for patent infringement. Defendants are engaged in making and marketing devices similar to those covered in the patents and are charged by plaintiffs with infringement of both patents.

The subject matter of this litigation is an infra-red gas burner. U.S. Patent No. 2,775,294 ('294) is for the burner tile or plate, and U.S. Patent No. 2,870,830 ('830) is for the burner housing, exclusive of the burner plate. The two units when placed together constitute the operational infra-red gas burner device. Difficult as it is, we will attempt to be accurate, brief and intelligible in our description of the device.

The burner utilizes a dish-shaped housing assembly which contains at one end a venturi or mixing tube which is in open communication with a gas nozzle and an air intake space. The gas and air are partially mixed in this mixing tube and then

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discharged on to a deflecting and guiding surface at the opposite side of the unit. This surface reverses the flow of the gaseous mixture and guides it into a separate mixing chamber and in so doing effects a thorough and uniform distribution of the gas-air mixture within the chamber (Patent '830). This dish-shaped housing unit has a flat planer open top on which are mounted the perforated ceramic plates of the '294 patent. The plates are mounted individually or in multiples of two, four, six, etc., but will be hereafter referred to as the plate or ceramic plate. The plate covers the entire opening, thus making a confined chamber except for the mixing tube, which is in open communication with the air and gas inlets. The pressure in the mixing tube caused by the incoming gas and air is somewhat greater than the pressure in the mixing chamber immediately beneath the perforated ceramic plate which causes all of the combustible mixture to be expelled under low pressure through the apertures in the plate. This ceramic plate resembles a perforated disc that contains many small holes allowing the gas to pass to the outer side thereof, at which point combustion takes place. The burning of this gas-air mixture at the surface of the ceramic tile is almost flameless and it heats the surface of the tile to a reddish incandescent glow, which in turn radiates infra-red heat waves. These rays travel through the surrounding air without heating it. Upon striking an opaque object these infrared rays are then converted into heat.

In order for the burner to successfully operate, it is necessary that the gaseous mixture be ignited only on the surface of the ceramic plate and not in the mixing chamber behind the plate. When this premature ignition occurs in the mixing chamber it is known as 'backfiring.' To prevent this 'backfiring' the ceramic burner plate must be of sufficiently low thermal conductivity to insulate the red hot outer surface (1500 to 1700 degrees Fahrenheit) from the necessarily cool interior. Furthermore, the perforations in the tile must be small enough to prevent heat from the burning gas to travel back into the mixing chamber, yet large enough to eliminate too much pressure from building up in the mixing chamber.

Another characteristic of this type of infra-red burner is that it is intended to operate at the relatively low 'ordinary town gas pressures', with all of the air required for combustion being inspired into the mixing tube without the use of a compressor. If the perforations in the ceramic plate are too small in relation to the pressure of the incoming gas, the continuous and even flow of the gas and air through the perforations in the burner plate is restricted, thus causing a 'back pressure.' This 'back pressure' results in insufficient inspiration of air into the mixing tube. So, the diameter and number of perforations in the burner plate are important in two respects: One, they must be small enough in size to prevent 'backfire' from the hot surface of the plate, and two, they must be large enough in size and sufficient in number to keep 'back pressure' from preventing inspiration of sufficient air into the mixing tube.

In addition to the above factors, due to the complex nature of gas flow, the thickness of the burner plate and consequently the length of the perforations through which the gas flows on its way to the burner surface is an important factor in the burner's efficient operation.

Finally, since different gaseous fuels have different ignition temperatures, ignition speeds, and inspirating qualities the type of fuel used is a factor to correlate with the other considerations mentioned. A change in the chemical composition of the gas may require a change or variation in the size and number of the holes in the ceramic tile. Thus the size of the perforations, the number, and the length thereof are of vital importance and must be properly correlated with each other and the other variables mentioned to achieve the desired result.

Patent '294 issued December 25, 1956, covering the ceramic burner plate, requires that the tile have generally parallel passages through which the gaseous mixture

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may pass, which passages must be evenly distributed over the area of the tile with the total cross-sectional area of the passages being not less than 'about 20 per cent' of the total radiation area of the surface of the burner plate. The individual passages are to be not less than 5 millimeters (about 6/32 of an inch) in length and a cross-sectional area of not more than 4 square millimeters (about 6/1000 of an inch) each. A heat retarding medium of substantially lower thermal conductivity than the clay or refractory material of the plate is to be distributed throughout the plate with the thermal conductivity not exceeding '0.5 kc/hr. m. degrees c.' (.5 kilocalories per hour, per meter, per degree, centigrade). The heat retarding medium is composed of pockets of air or voids within the ceramic itself. The pockets are produced by sintering the clay or other material used to form the tile block; that is, by incomplete firing of the clay ceramic during its construction. The impurities in the clay are burned out without fusing the remaining material together in a solid mass. The result is small pockets or voids containing air which has 10 to 100 times less thermal conductivity than the surrounding solid ceramic.

Patent No. '830 issued January 27, 1959 is concerned with the general housing of the burner plate, including the positioning of the component parts and structural arrangement of the burner. The aim of the patent is to provide a maximum burning surface while having minimum overall dimensions, particularly depth, thus providing maximum heat while taking up a minimum of space.

Defendants manufacture and sell three types of ceramic burner plates, two with cylindrical passages and one with slotted passages; all of which allegedly infringe upon plaintiffs' '294 patent. The housing unit for the burner plate manufactured and sold by defendants is somewhat similar in design to the specifications in plaintiffs' patent, but there is some variation in the overall dimension.

In defending this infringement case, defendants have alleged that both of plaintiffs' patents are invalid and even if valid there was no infringement. In addition, they have asserted the affirmative defense of patent misuse and have counterclaimed for damages, alleging that the patent misuse was a violation of the antitrust laws entitling recovery of treble damages. The basis of the closely related patent misuse defense and the antitrust counterclaim is the license and sales agreement between American Infra-Red and Hupp Corporation. Defendant contends that the...

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